IP and the 114th Congress: Meet the Senate Republicans on the Judiciary Committee

Yesterday we profiled the Republicans on the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. Today we profile their Republican partners in the Senate.

In the Senate the Judiciary Committee is where any action relating to intellectual property reform will be played out. Key Republican Senators on the Judiciary Committee, including Senators Grassley, Cronyn and Hatch, are on record as saying that more patent reform is on the horizon. Thus, the question is not if the Senate will take up patent reform during the 114th Congress, but rather how quickly it will be brought up in Committee. Additional patent reform in 2015 seems like a nearly foregone conclusion, but when everyone starts thinking that patent reform has a way of going no where fast, or at least that has been the history of patent reform in Congress.

With that in mind, the critical question isn’t whether Congress will change the patent law, but rather how will they change the laws. The industry does not seem interested in anything that approximates the sweeping changes of the American Invents Act, or the more modest but significant changes proposed during the 113th Congress. Still, there is a deal that could easily get done that allows everyone to take credit for reigning in abusive patent litigation — aiming specifically at patent trolls. There is near unanimity that abusive, fraudulent and misleading demand letters have no place in the system. These are not used by “proper” patent owners who want to get paid for innovating, but rather used by those who engage in what some federal judges have called extortion-like behavior. My prediction is that Congress will tread easy on patent reform, but get something done around the edges. It will need to be bipartisan with industry buy-in or nothing is going to happen.

Without further ado, meet the Republicans on the Senate Judiciary Committee.

Senator Chuck Grassley (R-IA), Chairman

Senator Grassley was born on September 17, 1933, in New Hartford, Iowa. He has been married to his wife Barbara since 1954 and has five children. Grassley has been a farmer, a sheet metal shearer, assembly line worker and a politician. Prior to being elected to the Senate in 1980 he served in the House of Representatives for three terms and he also served in the Iowa Legislature. The senior Senator from Iowa, Grassley is famous for his work ethic and connection to his constituents. He currently holds the longest record for not missing a vote, and every year since being elected to the Senate Grassley holds as least one meeting in each of Iowa’s 99 counties. With Republicans taking control of the Senate after the 2014 election Grassley moves from Ranking Member of the Judiciary Committee to Chairman, replacing outgoing Chair, Senator Patrick Leahy, who will become the new Ranking Member on the Committee. Grassley has previously served as Chairman of the Committee on Finance. He is a strong supporter of the development of wind, solar, biodiesel, biomass and ethanol as a sustainable, domestic, renewable energy source, which is not surprising since he comes from the heart of America’s farmland. Grassley is a pragmatic politician. In April 2014, when large entities were pushing hard for the latest round of patent reform to pass Grassley pumped the breaks, acknowledging that there were significant differences of opinion on the need for additional reform. “Sometimes it takes more time than we’d like, but, the end result is a better product. I’m willing to sacrifice a little time to develop a bipartisan bill that we can all support.” With growing concern from virtually all levels within the industry about the necessity for additional patent reform, Grassley’s pragmatic approach could slow things down. Having said that, Grassley is on the record about wanting to do something about patent trolls and abusive litigation. If Grassley continues to want a bipartisan approach to patent reform, and he wants to get at least something accomplished, this could signal a focus on abusive, misleading and fraudulent demand letters, where there is near universal agreement within the industry.

Senator Orrin G. Hatch (R-UT)

Senator Hatch, the senior Senator from Utah, was born on march 22, 1934. He has been married to his wife since 1957 and he has six children, twenty-three grandchildren and 14 great-grandchildren. Hatch is currently serving his seventh term in the Senate, being first elected to Senate in 1976. Hatch is a previous Chairman of the Senate Judiciary Committee, and he has a longer tenure than does Grassley, so some may wonder why he is not the Chair of the Judiciary Committee. With the Republican takeover of the Senate, rather than assume control of the Judiciary Committee, Hatch has taken charge of the Senate Finance Committee, taking over for Senator Ron Wyden (D-OR). Hatch is also a former Chairman of the Senate Health Committee. Hatch has long been a strong supporter of intellectual property rights. He has supported legislation in the past that would expand copyright term and has been a staunch alley of content creators, continually criticizing infringers and supporting legislation that would make it easier for content creators to go after serial copyists. Hatch has also been a driving force with respect to patent policy, for years criticizing the law of inequitable conduct and how infringing defendants charge that every mistake made by prosecuting patent attorneys amounts to fraud. His efforts lead to the creation of supplemental examination, which gives patent owners a mechanism to inoculate patents if a mistake has been made by going back to the Patent Office for a post issue review of potentially material prior art. Hatch has more recently been highly critical of patent trolls and patent litigation abuse. Hatch takes intellectual property matters so seriously that he has a page dedicated to IP matters on his website, which is not typical for Members of Congress. In July 2014, Hatch said that patent trolls must be a top priority for Congress.

Senator Jeff Sessions (R-AL)

Senator Sessions was born in Selma, Alabama, on December 24, 1946. Sessions became an Eagle Scout in 1964, attended Huntingdon College graduating with a BA in 1969, and graduated from the University of Alabama with a law degree in 1973. From 1973 to 1986 Sessions served in the Army Reserves, attaining the rank of Captain. In 1981, Sessions was nominated by President Reagan to serve as the U.S. Attorney for the Southern District of Alabama. In 1995, Sessions was elected Alabama Attorney General. He was elected to the Senate in 1996, receiving nearly 52.5% of the vote. Sessions reelection victories have grown in size and in 2014 he ran unopposed, receiving over 97% of the vote. Since being elected to the Senate Sessions has served on the Budget Committee, the Committee on Armed Services and the Judiciary Committee. Senator Sessions is a vocal critic of the Obama Administration and very active on many matter relating to the Administration of Justice and the Courts. He has not, however, been intimately involved with intellectual property matters.

Senator Lindsey Graham (R-SC)

Senator Graham, the senior Senator from South Carolina, was elected to the Senate in 2002 and re-elected in 2008 and 2014. Prior to being elected to the Senate, Graham was elected to the House of Representatives in 1994 to represent South Carolina’s 3rd Congressional District, the first Republican elected to serve that District since 1877. Before being elected to the House, Graham served on active duty with the Air Force from 1982 to 1988. Upon leaving active duty he joined the South Carolina Air National Guard. Graham continues to serve in the Air Force Reserves and is currently a Colonel assigned as a Senior Instructor at the Air Force JAG School. In the Senate, Graham has been primarily focused on issues relating to the military, foreign policy and terrorism. His Committee assignments have included Appropriations, Armed Services, Budget, Homeland Security, Veterans’ Affairs and Judiciary. Senator Graham has not been intimately involved with intellectual property matters. Graham is reportedly considering a run for President in 2016.

Senator John Cornyn (R-TX)

Senator Cornyn, the senior Senator from Texas, was born on February 2, 1952. Cornyn was raised in San Antonio and is a graduate of Trinity University and St. Mary’s School of Law, both in San Antonio. Cornyn also earned a Masters of Law from the University of Virginia Law School in 1995. Cornyn has been married for 35 years and has two daughters. Prior to being elected to the Senate in 2002, Cornyn served as a district judge in Texas before being elected to the Texas Supreme Court, where he served for nearly seven years between 1991 and 1997. In 1998, Cornyn was elected as Texas Attorney General, serving in that position for several years until his election to the Senate in 2002. Senator Cornyn served as Chairman of the National Republican Senatorial Committee for the 2010 and 2012 election cycles, and as Minority Whip in the 113th Congress. With the Republicans taking control of the Senate after the 2014 election, Cornyn has risen to Majority Whip, which places him second in leadership only behind Senator Mitch McConnell (R-KY), who is the Senate Majority Leader. Cornyn currently sits on the Senate Finance and Judiciary Committees. Despite his leadership duties, Cornyn has been actively involved in supporting and proposing patent legislation. For example, in May 2013, Cornyn submitted legislation that would make loser-pay provisions applicable to both plaintiff and defendant. In November 2014, Cornyn also promised the Senate would take up patent reform once again in the 114th Congress.

Senator Michael S. Lee (R-UT)

Senator Lee Lee was born on June 4, 1971, in Mesa, Arizona. He is the junior Senator from Utah and a first term Senator who was elected to the Senate in 2010. Lee is a graduate of Brigham Young University with a Bachelor of Science in Political Science, and he is also a graduate of BYU’s Law School in 1997. After leaving law school Lee went on to serve as law clerk to Judge Dee Benson of the U.S. District Court for the District of Utah, and then with future Supreme Court Justice Judge Samuel A. Alito, Jr. on the U.S. Court of Appeals for the Third Circuit. Lee is one of the most prominent leaders of the Tea Party movement. He successfully challenged three term Republican Senator Bob Bennett in the Republican primary, earning the Republican nomination, which in Utah generally assures victory in the general election. Lee’s Committee assignments have included Judiciary, Energy and Natural Resources, and Foreign Relations. A vocal and outspoken critic of the Obama Administration, and sometimes antagonist to Senate Republican leaders, Lee has focused on conservative and libertarian issues while in the Senate. Lee has also focused at least some attention on patent matters. Lee gave a speech about patents and innovation in February 2013 at a Computer & Communications Industry Association (CCIA) event in 2013. In September 2013 he co-authored an article with Senator Leahy in Politico, which focused on the problem of abusive litigation tactics. Lee subsequently co-authored the Senate patent reform bill (with Senator Leahy) that was introduced in 2013.

Senator Ted Cruz (R-TX)

Senator Ted Cruz, the junior Senator from Texas, was born on December 22, 1970. He was first elected to the Senate in 2012. Cruz graduated from Second Baptist High School in Houston as valedictorian in 1988. Cruz is also a graduate of Princeton University with a BA in Public Policy. After graduating from Princeton, Cruz attended Harvard Law School, graduating in 1995. After leaving Harvard, Crux clerked for Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit, and then later for Supreme Court Chief Justice William Rehnquist. After working for President George W. Bush’s presidential campaign in 1999, Cruz later served in the Bush Administration as an associate deputy attorney general and as a director of policy planning at the Federal Trade Commission. Subsequently, Cruz was appointed Solicitor General of Texas, a position he held from 2003 to 2008. Cruz has authored 70 U.S. Supreme Court briefs and argued before the U.S. Supreme Court on nine separate occasions. Since entering the Senate in 2012, Cruz has become the politician most closely associated with the Tea Party movement. His Committee assignments have included Armed Services, Judiciary, and Commerce, Science and Transportation. In the 114th Congress Senator Cruz will chair the Senate subcommittee on Space, Science and Competitiveness, which has oversight jurisdiction of NASA. Many left leaning publications are ridiculing Cruz for this Chairmanship because Cruz has been an opponent of global warming. Of course, these same publications criticizing Cruz claim he is denying climate change by themselves conflating the issue of climate change with the issue of global warming.  Still, it will be interesting to see if Cruz is antagonistic toward NASA. Senator Cruz does not have much of a track record on intellectual property matters since joining the Senate. He did, however, successful argue one patent case in front of the United States Supreme Court. See Global-Tech Appliances v. SEB.

Senator Jeff Flake (R-AZ)

Senator Jeff Flake, born on December 31, 1962, was born and raised in Snowflake, Arizona. Flake grew up working alongside migrant workers on a cattle ranch. Flake graduated from Brigham Young University, where he received a B.A. in International Relations and an M.A. in Political Science. In 1987, Flake started his career at a Washington, D.C. public affairs firm, but ultimately decided to return to Africa, where he had been sent on a Mormon mission. In Africa, Flake served as Executive Director of the Foundation for Democracy in Namibia. In 1992, Flake and his family moved back to Arizona where he was named Executive Director of the Goldwater Institute. Flake, the junior Senator from Arizona, was elected to the Senate in 2012, succeeding Senator Jon Kyl. Prior to being elected to the Senate, Flake served in the House of Representatives for twelve years.  Flake sits on the Judiciary Committee, the Energy and Natural Resources Committee, and Foreign Relations Committee where he also serves as ranking member of Subcommittee on African Affairs. While in the Senate, Senator Flake has not been intimately involved with intellectual property matters.

Senator David Vitter (R-LA)

Senator David Vitter was born on May 3, 1961 and is the senior Senator from Louisiana. Prior to being elected to the Senate in 2004, Vitter was elected to the House of Representatives in 1999. Vitter’s Committee assignments have included Judiciary, Environment and Public Works, Banking/Housing, Armed Services and Small Business and Entrepreneurship. While in the Senate Vitter has primarily focused on issues of regional importance, including oil and gas drilling, border security, and reforming the Army Corps of Engineers to help guarantee better hurricane and flood protection and preparedness. Senator Vitter has already announced that he will run for Governor of Louisiana in 2015, attempting to succeed Governor Bobby Jindal who is term-limited. The timing is excellent for Vitter, given that he would not need to stand for reelection to the Senate until 2016. With Vitter mounting a gubernatorial campaign in 2015 it remains to be seen how active he will be in Washington. Vitter has not had a large role in intellectual property matters, but over the years he has repeatedly supported legislation that would make it easier and quicker for generic drugs to make it to the market, as well as legislation that would once and for all end reverse payments. NOTE: Senator Vitter should be much higher on this list in terms of seniority, but Senators are listed in the same order here as they were on the Senate Judiciary webpage. 

Senator David Perdue (R-GA)

Senator David Perdue was born in Macon, Georgia, on December 10, 1949, and raised in Warner Robins where he grew up working on his family farm.  Perdue attended Georgia Tech University where he earned a degree in Industrial Engineering and a Master’s in Operations Research. After graduating from George Tech, Perdue married his wife Bonnie, and the two have been married for 42 years, has two sons and three grandsons. Perdue, the junior Senator from Georgia, has over 40 years of business experience, including as the former CEO of Reebok athletic brand and Dollar General stores. The Atlanta Journal-Constitution has called Perdue a turn around expert who specializes in reviving brands. Perdue was elected to the Senate in 20014. He primary campaign pledges included fighting for term limits for politicians, helping reign in federal government spending, grow the economy, create jobs, and tackle our nation’s debt crisis. In the 114th Congress, Perdue will serve on the Agriculture, Nutrition, and Forestry Committee; Budget Committee; Foreign Relations Committee; Judiciary Committee; and the Special Committee on Aging.

Senator Thom Tillis (R-NC)

Senator Thom Tillis was born on August 30, 1960, born into working-class family with his father, mother and five siblings. His family lived a modest working class life, frequently relocating depending on where his parents could find work. After graduating from high school, Tillis was unable to afford college, so he took a job as warehouse records clerk earning minimum wage. Ultimately earning a college degree at the age of 36, Tillis became a top-level executive at PricewaterhouseCoopers and IBM. After a 22 year private sector career Tillis was elected to the North Carolina House of Representatives in 2006 and was selected by his peers to serve as Speaker of the House from 2011 to 2014. As Speaker, Tillis played an instrumental role in reforming North Carolina’s tax and regulatory codes. Tillis was elected to the Senate in 2014, narrowly defeating Democrat incumbent Kay Hagan, winning by approximately 50,000 votes (or 1.7% margin). Tillis will serve as a member of the Senate Armed Services Committee; Veterans’ Affairs Committee; Agriculture, Nutrition and Forestry Committee; Judiciary Committee, and the Senate Special Committee on Aging.